Speech on Marriage Equality

1.27pm | November 28, 2017

by Jenny McAllister177.80scon November 28, 2017

There is a lot that is worth saying about marriage. But there is also a lot that has already been said in the almost 50 hours of debate on this issue across the last two parliaments. Accordingly, as someone who has spoken on the issue in this place on quite a number of occasions in the last couple of years, I intend to keep my remarks very brief.

After the celebrations and the relief over the result of the postal survey last week, we now have a responsibility to deliver on the very clear mandate that we've been given. It's clear that the people of Australia overwhelmingly support marriage equality. There is no hidden army of social conservatives. Years of polling were right. The belief in marriage equality is a belief that unites us, not one that divides us. Senior members of this government have given a commitment that marriage equality will now be legislated swiftly and fairly. And I hope so. It is what the Australian people expect and it's what the LGBTI community deserve.

The LGBTI community has spent generations struggling for equality. It's been a very long road from criminalisation to tolerance and from tolerance to acceptance and respect. That struggle has asked a lot. It has asked a lot of the LGBTI community and it has taken a lot from them. The campaign during the postal survey has been no exception. The past few months have been bruising and hurtful for the LGBTI community. As the chair of the Senate committee looking into the conduct of the postal survey, I have seen much of the material that's been produced and distributed over the course of the campaign. This is material that has been put into people's letterboxes, sent to them on Facebook and spray-painted on their homes. It has been cruel, it has been crude and it has been spiteful. What this material tells us is that there are still a small number of people out there—a very small number, I believe—who are highly motivated and who wish to roll back the rights that have been acquired by gay and lesbian Australians. Harm to the gay community is not merely an unfortunate collateral of their campaign. It was one of their primary goals. And this is the context that, I think, we need to keep in mind when we consider the consequences of some of the changes to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 that have been floated in public debate.

I am conscious that a number of senators have flagged amendments to this bill in their public comments. While we're yet to see the detail of some of the amendments, I think what is proposed is to radically extend the reach of conventional interpretations of freedom of religion. In anticipation of seeing these amendments, I would like to make a few observations from a first-principles basis about how we might approach them. Many arguments have hinged on article 18 of the International Covenant on Civil and Political Rights. It's the article that provides for freedom of religion. I want to make two observations about that article. The first is this: it provides some quite helpful guidance, I think, about how we might think about this notion of freedom of religion. It states that everyone shall have the freedom of thought, conscience and religion. And that, of course, is something that we all accept and ought to embrace in the chamber. It goes on to say:

This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

Those things are important. But it doesn't make mention of commerce. It doesn't make mention of decisions around employment. It doesn't make mention of decisions about rent or providing accommodation. It's very specific, in fact, about the kinds of activities that we might ordinarily understand to be involved in the exercise of freedom of religion.

The second observation I'd make is that the covenant specifically acknowledges that freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. It's a reminder that we can't just pick and choose those articles of the covenant that we choose to engage with. We need to read it as a whole and we need to understand that this right to freedom of religion must be balanced against the other fundamental human rights that are contained in the covenant. Australia's antidiscrimination laws already reflect a settlement of this kind. They reflect a conversation we've had publicly over many decades. They prohibit discrimination on a range of grounds. But they do provide exemptions for religious institutions to conduct their own affairs consistent with their own religious beliefs, and the bill that's before us today also represents a settlement of this kind—settled, I should indicate, unanimously in a committee process that was populated by senators from both sides of the aisle.

Specifically, the bill exempts religious organisations from the obligation to recognise same-sex marriage. To those who might seek to extend these exemptions to allow individuals to discriminate in other domains—in commerce, in employment and perhaps in housing—I say: you really ought to proceed with caution. Australian history provides many examples of discrimination that was arguably grounded in religious belief. As a Protestant, living and working in Queensland, my grandfather complained bitterly about Catholic preferment in parts of the Queensland Public Service. Now, lest anyone here be concerned that I seek to reprosecute this grievance on some sectarian basis, I can provide some reassurance: I don't seek to do that. In fact, I'm absolutely confident that a similar or perhaps worse grievance might have been heard in Catholic households in Queensland in the same period. It wasn't unknown for job advertisements to be placed stipulating that no Catholics need apply, and it was quite ordinary in job applications for applicants to be asked for their religious affiliation as part of the interview process.

We should welcome a decline of sectarianism of this kind and its associated discrimination. This decline actually provides some indication of the boundaries we've set for ourselves as a society. Australians accept that we are all free to practise our faith, but we're rightly cautious about an interpretation of the obligations of faith that would seek to justify discrimination in every area of public life. So I say to those senators opposite who are considering amendments around religious freedom: we ought to think very carefully about how religious freedoms interact with other important freedoms that are found in the international covenant but also found to have been settled in sensible ways in Australian political history.

I want to conclude by acknowledging the hard work of all those who have fought for marriage equality. There are, of course, many people in this chamber and many people in the other place who have put their own lives into the public domain and opened them up for discussion in the pursuit of change. But I think the real heroes are those many people—not elected to parliament, living ordinary lives—who have borne the brunt of discrimination and who have nonetheless chosen to stand up and say: 'This is fair. I wish to marry the person that I love. I want that love to be recognised, and I want it to be recognised not just in the community but in law.' I'm extremely proud that the Australian community has endorsed that position and I look forward to such a law being made in this parliament in the very near future.